Delhi District Court
T.R. Bhau vs Raghubir Singh on 16 January, 2021
IN THE COURT OF MS NEELAM SINGH
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 10245/16
T.R. Bhau
S/o Late Sh. Santosh Singh Bhau
R/o H54A, Kalkaji, New Delhi.
.......... Plaintiff
Versus
Raghubir Singh
S/o Sh. Gurcharan Singh
R/o Flat No. 1, Adhishwer Apartments,
34, Ferozeshah Road, New Delhi.
......... Defendant
SUIT FOR SPECIFIC PERFORMANCE, DECLARATION AND
INJUNCTION
(a) Date of institution : 08.12.2010
(b) Date when judgment reserved : 16.01.2021
(c) Date of Judgment : 16.01.2021
JUDGMENT:
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff against the defendant for specific performance, declaration CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 1/47 and injunction.
2. The plaintiff initially filed C.S No. 193/2009 in the court of the District Judge, Tis Hazari Courts, Delhi for declaration, specific performance and injunction. The said suit was instituted on or before 09.02.2007. Summons were issued to the defendant on the said date. The said suit proceeded to trial. The plaintiff led evidence and closed his evidence. Thereafter, the defendant also led his evidence and the same were closed after leading the evidence of DW1. The learned ADJ fixed the matter for final arguments on 28.08.2010.
3. In the meantime, the defendant moved an application under Order 7 Rule 11 CPC on 09.08.2008. The defendant also moved an application under Order 6 Rule 17 on 26.08.2010. Ld. ADJ directed that the said applications shall be taken up at the stage of final arguments. On 28.08.2010, the Ld. ADJ dismissed the applications filed under Order 7 Rule 11 CPC as well as the application under Order 6 Rule 17 CPC, since the defendant did not advance submission on these applications. Thereafter, the court, upon perusal of the plaint, observed that the total sale consideration of the suit property is Rs. 24,50,000/ and consequently, the suit for specific performance has to be valued for purpose of court fee and the jurisdiction according to the sale consideration. The matter was fixed for advancement of arguments on the aspect of pecuniary jurisdiction of the District Court.
4. On 16.09.2010, the plaintiff himself moved an application under Order 7 Rule 10 (A) CPC on the basis that, since the total sale CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 2/47 consideration under the agreement to sell was Rs. 24,50,000/ which is more than the pecuniary jurisdiction of the District Court, the plaint be returned and the plaintiff be permitted to pursue the suit before the competent court of jurisdiction. This application was not opposed by the defendant. Accordingly, the application was allowed by Ld. ADJ on 16.09.2010. The court directed that the parties shall appear before the Registrar General of High Court of Delhi on 26.10.2010, since the plaintiff proposed to present the plaint before Hon'ble High Court of Delhi. It was further directed that it shall not be necessary for the plaintiff to serve the defendant with summons for appearance in the suit as per Order 7 Rule 10 A(4) CPC.
5. Thereafter, Hon'ble High Court of Delhi started the trial denovo and it was directed that the parties would be entitled, at the appropriate stage, to not only lead relevant evidence by relying upon Section 33 of the Indian Evidence Act, but would also be entitled to cross examine the witness of the opposite party, as provided for in Section 145 of the Evidence Act. It is also directed that the evidence led by both the parties before the Ld. ADJ cannot be denied. It is further directed that ".... 23. At the same time, since the present is to be treated as a fresh proceeding / suit, the right of the parties to lead evidence beyond what had been led in the earlier proceedings before the Ld. ADJ cannot be denied. Accordingly, while holding that the present is a fresh proceeding / suit and , CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 3/47 therefore, the right of the parties to seek a fresh trial cannot be denied, I hold that the evidence led by the parties before the court of the Ld. ADJ shall form part of the evidence in the present suit, and the parties shall be entitled to lead further evidence on the issues that may be framed in the present suit after the pleadings are complete and on a consideration of the same. This issue is accordingly disposed of...."
" ....24. The plaintiff may file the replication to the written statement of the defendant within four weeks. Both parties shall file their respective original documents, if any, within the same period. The parties shall appear before the Ld. Joint Registrar for admission / denial of documents on 24.10.2013 and before the court for framing of issues on 20.11.2013..."
6. Brief facts as averred in the plaint are that it is the case of the Plaintiff that he is operating his office from property bearing No. H 54A, Ground Floor, Kalkaji, New Delhi. Plaintiff being desirous of purchasing this property stuck a deal with the defendant on 14.04.2005 for a total sale consideration of Rs. 24,50,000/ out of which Rs. 50,000/ was paid as earnest money by the plaintiff vide cheque no.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 4/47803961 dt. 18.04.2005. It is the case of the plaintiff that he paid a total amount of Rs. 19,51,000/ from time to time as per the agreed installments when plaintiff started requesting the defendant to get the documents prepared in the name of the plaintiff qua the property in question. Defendant deliberately started avoiding.
7. It is the case of the plaintiff that the parties initially entered into a lease agreement from the said property on 13.04.2005 but the same was declared as null and void after agreement to sell dt. 14.04.2005 was entered between the parties. It is submitted that plaintiff paid an amount of Rs. 19,51,000/ out of the total sale consideration of Rs. 24,50,000/. It is submitted that plaintiff continued visiting the office of the defendant several times but defendant on one pretext or the other refused to meet the plaintiff and started avoiding the completion of the formalities of the sale agreement. It is further submitted that since the real estate prices in Delhi contined to reach further heights, the defendant became dishonest and finally refused to even entertain the telephone calls of the plaintiff. It is submitted that finally with a lot of efforts, plaintiff met the defendant in the month of September, 2006 and as per his instructions, got the balance payment ready to be handed over to the defendant in the office of the subRegistrar but defendant failed to appear in the Registrar office inspite of his own assurances.
8. It is submitted that plaintiff has been writing to the defendant time and again for completing the balance formalities but the CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 5/47 defendant has been avoiding the same on one pretext or the other. It is further submitted that plaintiff finally wrote a letter dt. 06.10.2006 to the defendant asking him once again to hand over the papers after receiving the balance amount but the defendant failed to comply the same. Plaintiff further submitted that he has always been ready to perform his part of contract and is ready to make the balance payment.
9. It is further submitted by the plaintiff that defendant has not only illegally rescending the contract but also intended to usurp the amount of Rs. 19,51000/ paid by the plaintiff towards the sale consideration of the total agreed amount of Rs. 24,50,000/. It is further submitted that defendant by taking a false and frivolous plea sent a legal notice through his counsel upon the plaintiff asking him to vacate the suit premises but the said notice was dully replied by the plaintiff asking the defendant to comply with the agreement to sell. It is submitted that defendant has also filed a suit for recovery which is pending adjudication. It is submitted that the cause of action arose in favour of the plaintiff and against the defendant on 14.09.2006 when the defendant failed to report at the office of the Registrar for executing the papers and again on 06.10.2006 when the legal notice was served upon him and hence, the present suit has been filed by the plaintiff for specific performance of the agreement to sell and also for declaring that the agreement dt. 14.04.2005 is valid and is binding upon the defendant.
10. Defendant has contested the suit by filing his written CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 6/47 statement wherein he has mentioned that the present suit is not maintainable as the plaintiff is guilty of the concealment of the material facts and he himself failed to abide by the terms and conditions of the agreement to sell dt. 14.04.2005. It is submitted that the suit of the plaintiff is not maintainable keeping in view the clause (1) of the agreement to sell as the plaintiff has failed to pay the consideration amount to the defendant on or before the stipulated date i.e. 15.07.2005.
11. It is further submitted that as per agreement to sell if the said amount is not paid by 15.07.2005 the advance money deposited would be forfeited. It is further submitted that defendant has entered into a lease deed with M/s Redecon India Pvt. Ltd. and not with the plaintiff, plaintiff being one of the director of the said company is trying to mislead the court that he was inducted as a tenant. It is submitted that defendant has received the payment towards the lease rent from M/s Redecon India Pvt. Ltd. and not from the plaintiff. It is further submitted that as per the lease deed, if the lessee shall be in any arrears for more than two consequtive months then the defendant was at liberty to get the premises vacated from the plaintiff and as such defendant on getting the cheque bearing No. 149342 dt. 11.05.2005 dishonoured, exercised his right to issue notice upon the plaintiff for termination of the lease and defendant specifically asked M/s Redecon India Pvt. Ltd to vacate the suit property. However, immediately thereafter, M/s Redecon India Pvt. Ltd. Paid a sum of Rs. 50,000/ by CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 7/47 bankers draft to the defendant and when the defendant was not ready to receive the same, the lessee has got deposited a sum of Rs. 5 lacs in advance towards the security as well as the rent for the whole period with the defendant. It is submitted that plaintiff approached the defendant to purchase the suit property and the defendant also agreed to sell the same and it was agreed that defendant will make the entire payment of Rs. 24,50,000/ on or before 15.07.2005. It is submitted that it was specifically agreed between the plaintiff and defendant that if the plaintiff failed to make the payment on or before 15.07.2005, the agreement to sell shall stand cancelled and the earnest money will be forfeited.
12. It is further submitted that after the expiry of lease deed on 12.04.2006 M/s Redecon India Pvt. Ltd. had to hand over the physical vacant possession of the suit property to the defendant but the lessee avoided and neglected to abide by the terms of the lease deed and accordingly, a sum of Rs. 5 lacs paid by the lessee to the defendant was adjusted towards the arrear of rent at the rate of Rs. 2000/ per day towards the use and occupation of the suit property as per the agreed terms and condition of the lease agreement.
13. It is submitted by the defendant that the suit of the plaintiff is liable to be dismissed on the ground that the agreement to sell on which the plaintiff is relying upon becomes null and void, when the plaintiff failed to make the payment within the stipulated period i.e. on or before 15.07.2005. It is further submitted that plaintif was having CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 8/47 no money to pay the defendant as per the agreement to sell and hence, he himself has admitted for forfeiture of earnest money as per the letter dt. 13.05.2005. It is submitted that since the earnest money paid by the plaintiff stands forfeited and as such he cannot ask for the specific performance for agreement to sell or for the refund of the said money. It is submitted that plaintiff has forged the signature of the defendant on receipt which is without any date and the same is annexed at page no. 27 alongwith the plaint.
14. It is submitted that plaintiff and M/s Redecon India Pvt. Ltd are two separate and distinct legal entities. It is further submitted that whatever money has been received from M/s Redecon India Pvt. Ltd is received in the capacity of a lessee and all the bills, electricity tax etc have been paid by M/s Redecon India Pvt. Ltd. It is submitted that only linkage between the plaintiff and M/s Redecon India Pvt. Ltd is that plaintiff is one of the director of M/s Redecon India Pvt. Ltd. It is submitted that plaintiff was required to make a payment of Rs. 9 lacs on or before 28.05.2005 and remaining amount of Rs. 15 lacs was to be paid on or before 15.07.2005 but he failed to do so. The receipt of amount of Rs.19, 51,000/ has been denied by the defendant in his written statement.
15. Rejoinder has been filed by the plaintiff to the written statement of the defendant by denying all the allegations in the written statement and reiterating the fact of his own case.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 9/4716. From the pleadings of the parties, the following issues were framed by Hon'ble High Court of Delhi vide order dated 26.03.2015:
(i) Whether the plaintiff is entitled to a decree of specific performance qua the agreement dated 14.04.2005 qua the suit property bearing No. H54A, Ground Floor, Kalkaji, New Delhi, if so, its effect? OPP
(ii) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, its effect? OPD
(iii) Relief
17. In order to prove his case, plaintiff has examined himself as PW 1 in (C.S. No. 46/2007) and filed his evidence by way of affidavit which is Ex. PW1/A wherein he reiterated the averments made in the plaint. During his deposition, he also relied upon and exhibited the following documents: S No. Documents Exhibit
1. Original letter dt. Ex PW1/1 23.04.2005 alongwith copy of banker cheque
2. Letter dated 13.05.2005 Ex PW1/2
3. Letter dated 09.09.2005 Ex PW1/3 with copy of banker's cheque CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 10/47
4. Original receipt and copy Ex PW1/4 of cheque dt. 03.10.2005
5. Letter dt. 06.10.2006 with Ex PW1/5 postal receipts & Ex PW1/6
6. Reply dt. 17.11.2006 to Ex PW1/7 the legal notice with and Ex original postal receipts PW1/8 7. Original house tax Ex PW1/9 receipt PW1 has been cross examined in detail and the relevant extract of his cross examination are as under;
"...I have come with the capacity of Shri. T.R. Bhau. The name of my company is Redecon India pvt. Ltd. The agreement to sell is made by Sh. T.R. Bhau and Sh. Raghubir Singh. I know each and every condition of agreement to sell. We made this agreement on 14.04.2005. We had to pay Rs. 9 lacs on or before 28.05.2005. Balance amount of Rs. 15 lacs I had to pay by the month of July, 2005. I had paid Rs. 10 lacs before 28.05.2005. I had paid that amount before 13.05.2005. All the payment was made through banker's cheques. I do not remember the dates and numbers of the banker's cheques off hand Ex PW1/2 bears my signatures at point X. I had paid Rs. 3 lacs within CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 11/47 10 days in terms of letter Ex PW1/2. I had issued three cheques on 13.05.2005 out of which one was for Rs. 3 lacs and the other two cheques were for Rs. 5 lacs and Rs. 1 lacs. I do not remember if any cheque issued by me was returned dishonoured. It is correct that Ex PW1/3 does not bear signatures of Sh. Raghubir Singh. It is correct that I did not make entire payment by 15.07.2005. About Rs. 10 lacs were payable as on 15.07.2005. Suit property is in my possession. I am residing in the property as owner thereof. Defendant has also filed a case against me for rent and which is pending in the court of Shri N.K. Gupta, ADJ, Delhi. I am not paying rent as I am the owner of the suit property. I am residing in the suit property from the date when agreement to sell has been executed. On 13.04.2005, a lease agreement was also executed. Vol. Subsequently on 14.04.2005 agreement to sell was executed. On 13.04.2005 Rs. 50,000/ was given as security equivalent to two months rent. It is incorrect to suggest that the amounts paid by me are towards rent. Rent of Rs. 25,000/ per month was agreed on 13.04.2005. I did not make any payment between 28.05.2005 to 15.07.2005. It is incorrect to suggest that I had breached the agreement to sell. It is incorrect to suggest that I was ready and willing to perform my part of obligation as contained in the agreement. It is CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 12/47 incorrect to suggest that I am residing in the suit property as a tenant. It is incorrect to suggest that I am deposing falsely. It is incorrect to suggest that I am not entitled to relief of specific performance. It is incorrect to suggest that I have filed this suit as a counter blast to the suit filed by the defendant. It is incorrect to suggest that I am deposing falsely..."
18. Percontra, the defendant examined himself as DW1 who filed his evidence by way of affidavit, which is Ex. DW1/A and he relied upon the admitted document i.e. Agreement to sell dt. 14.04.2005 which is Ex DW1/1.
The witness has been cross examined and the relevant extract of his cross examination are as under: "...I had entered into an agreement to sell with the plaintiff for the property bearing no. H1, Ground Floor, Kalkaji, New Delhi on 14.04.2005. It is not mentioned in the said agreement to sell that there was a tenant at the property. Earlier this property was rented to M/s Redecon India Pvt. Ltd. The Managing Director of M/s Redecon India Pvt. Ltd. is the plaintiff. I do not remember how much money had been received by me in respect of this CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 13/47 agreement to sell, however, the same has been correctly mentioned in the agreement to sell. I have not received any amount except as mentioned in agreement to sell. I do not remember the exact amount which was forfeited by me as stated by me in Para 2 of Ex D1. I do not have any rent receipt for the payment of rent either by the plaintiff or M/s Redecon India Pvt. Ltd. I might have sent the letter to the plaintiff for recovery of rent but I do not remember either the date of issue or details of those letters. For para 4 of Ex D1, I might have issued a letter to the plaintiff but no notice was issued for the said reason / cause. I cannot show the said letter to the court. The said letter has not been filed by me in the court record. I had issued a letter regarding money paid for agreement to sell towards the arrears of rent. I did not treat the plaintiff as well as M/s Redecon India Pvt. Ltd. in the agreement to sell as the same persons. Rather according to me they are different persons. Ex DW1/P1 is the copy of the agreement to sell entered into between the plaintiff and me. Point A to Point B was incorporated in Ex DW1/P1 as per my consent. I had filed the suit against M/s CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 14/47 Redecon India Pvt. Ltd. for eviction and the said eviction suit has already been dismissed. I neither have rough idea nor exact idea what total amount has been received by me. I cannot show to the court at this time the memo for the bounced cheque a mentioned in Para 4 of Ex D1.
Q. It is put to you that you have referred cheque bearing No. 149342 dt. 11.04.2005 in para 4 of Ex D1. There was no cheque bearing no. 149342 but there was a pay order bearing No. 149342 dt.
11.01.2005. What you have to say?
Ans. I do not remember whether it was cheque or bank draft.
CQ. When you do not remember whether it was bank draft or cheque then how you have stated specifically in para 4 of Ex D1 regarding the fact of bounced of cheque No. 149342 dated 11.04.2005?
Ans. I do not remember the number of the cheque. I have signed Ex D1 after having going through and having understood the contents thereof. At present I do not have receipt security of Rs. 5 lacs as stated by me in Para 4 of Ex D1. It is wrong to suggest that I have received a sum of Rs.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 15/4721,19,424/ in compliance of Ex DW1/P1. It is incorrect that I have admitted the fact of this amount in the eviction suit filed by me and I did not controvert this fact in the said eviction suit. I do not remember if banker's cheque No. 452135 dated 09.09.2005 for an amount of Rs. 4 lacs was credited in my account on 13.09.2005 and same is my reply in respect of Banker's cheque No. 587014 dated 12.05.2005 for an amount of Rs. 4,25,000/. It is wrong to say that Rs. 5 lacs by way of cheque No. 497686 dated 03.10.2005 drawn on State Bank of Hyderabad, New Delhi was credited in my accou7nt towards Ex DW1/P1. This amount had come as rent from M/s Redecon India Pvt. Ltd. and not from the plaintiff. It is incorrect to suggest that this fact has not been stated in my written statement as well as in Ex D1. It is correct that my official address is 48 and 49, World Trade Centre, Connaught Place, New Delhi. I did not receive Ex PW1/5.
Ld. Counsel for the plaintiff asked a question from the witness whether address mentioned on Ex PW1/5 is his correct address. Witness took considerable time to reply this question. Now CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 16/47 witness has given answer that this is not his correct address. It is correct that I have two other addresses and the same are: R302, Model Town, Ludhiana, Punjab and 275, Barte, Abdulla Pur, Ludhiana, Punjab. It is correct that both these addresses have been mentioned upon Ex PW1/5. I did not receive the letter Ex PW1/5 at any of my address. I do not remember whether I had received reply to my notice issued by the plaintiff. The house tax is not being paid by the plaintiff but by M/s Redecon India Pvt. Ltd. It is incorrect to say that I never accepted any payment in respect of Ex DW1/P1 from the plaintiff after 13.05.2005. It is wrong to suggest that the plaintiff came to me with the balance payment in respect of Ex DW1/P for execution of the title documents. I had issued a notice regarding the forfeiture of the amount in respect of Ex DW1/P1 to the plaintiff. I am not ready to execute the sale deed in favour of plaintiff today even if the plaintiff pays me the balance sale consideration. It is wrong to suggest that the plaintiff had approached me several times alongwith the balance payment but I had refused to accept the same. It is wrong to suggest that I am CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 17/47 deposing falsely..."
19. In the denovo trial plaintiff has examined himself by way of affidavit Ex PW1/A and he has relied upon the documents already relied upon him in old C.S No. 46/2007. The witness has been cross examined at length and the relevant extract of his cross examination is as under:'' "... In the month of April 2005 M/s Radicon India Private Limited had taken premises bearing no. H54A, Ground Floor, Kalkaji New Delhi by virtue of lease deed. I do not remember the nature of the said deeds whether it was registered or unregistered. The original lease must be with defendant. The rate of rent of the premises leased out by the M/s Radicon India Private Limited was Rs. 25,000/. The original lease deed which was signed, executed and delivered between Radicon India and Raghbir Singh with regard to premises no. H. 54A, Kalkaji which bears my signature at point A on each page and those of Mr. Ragbhir Singh at point B on each page which I can identify.
The said lease is Ex PW1/RX1...."
".... I had purchased property no. H54A ground floor Kalkaji from Mr. Raghbir Singh.CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 18/47
There was a registered agreement to sell between myself and Raghbir Singh executed on 14.04.2005. I had have not brought the original registered agreement to sell as the original was with Mr. Raghbir Singh.
I do not remember in the office of subregistrar the said agreement to sell was registered. I cannot tell the value of the stamp paper upon which the said agreement to sell was drawn, executed and delivered between myself and Raghbir Singh. Ex D4 is the copy of registered agreement to sell. I do not remember if any notice was given by me to the defendant for the production of Ex D4. It is correct that except Ex D4 no other agreement to sell was executed by me and Raghbir Singh...."
"...Q.14. In which office of the Sub Registrar agreement to sell Exh. D4 was registered?
Ans. Agreement to sell Exh. D1 was not registered in the office of any sub registrar. Vol. It was notarized.
"... Q.18. I put it to you that on 25.01.2019, CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 19/47 it was stated by you that the defendant had executed registered an agreement to sell in your favour, whereas, you have stated today before the Ld. Local Commissioner that there is no registered agreement to sell executed by Raghubir Singh in your favour. Which of the statements made by you is correct?
Ans. My statement is made before Ld. LC is correct. Vol. Agreement to sell was done on legal stamp paper and was notarized which by mistake I took it was registered.
Q.No. 19. Is it correct in your plaint you have not stated that Rs. 3,00,000/ which were paid by you vide PW1/RX3 were towards the sale consideration not towards the electricity consumption charges.
Q.No. 22. Is it correct the electricity dues of S150, G.K. II and payment thereof was a liability of M/s Redecon Pvt. Ltd. Co. for the premises occupied by it as a tenant? Ans. Yes.
Q.No. 27. Is it correct that till today you have not sought declaration from any competent court of law seeking declaration to CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 20/47 the effect that Exh. D3 is null and void and not binding upon plaintiff on its Private Limited Company?
Ans. Yes. I have sought declaration by writing in agreement to sell of the suit property that any agreement prior to this agreement becomes null and void.
Q.No. 28. Please tell in which prayer of your plaint you have sought, cancellation / declaration of lease agreement Exh.D3? Ans. There is no such prayer made by me in the plaint seeking cancellation of Exh. D3.
Vol. In the plaint Para no. 4 it is clearly specified that the lease agreement done on 13.04.2005 becomes null and void after the agreement to sell entered on 14.04.2005. Q. No. 31. Can you show any document in power possession and control, your bank statement, pass book, income tax return, any other documents whereby you had paid Rs. 10.50 lakhs on 13.05.2005 towards performance of the contract Exh. D4? Ans. It is a matter of record.
Q. No. 32. Kindly show that record from CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 21/47 the judicial file in response the above question?
Ans. It is correct that I have not placed on record any documents showing payment of Rs. 10.50 lakhs made by me to the defendant. Vol. I have filed all the documents in the suit filed by defendant against me on the basis of lease showing the payments so made by me to the defendant.
Observation by Ld. L.C. the witness has stated so after going through the entire judicial file and the witness has shown photocopy at Page No. 24 the same is marked as Mark "A"s. Q. No. 33. I put it to you that you were conscious about the value of the contract as on the date of filing of the suit?
Ans. I am not understand this question. My suit only for registration of sale deed by the defendant in my favour. Vol. After taking the balance consideration amount. I have not brought the income tax returns with me as ordered on the last date of hearing. Q.No. 36. I put it to you in which clause of the agreement handing over the possession by CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 22/47 the defendant has been stipulated in writing whereby the defendant had put you in possession of the property without receipt of final payment, what do you have to say? Ans. I cannot say even by seeing Exh. D4 and the entire judicial record.
Q. No. 37 When did Mr. Raghbir Singh got vacated property no. S150, Greater Kailash PartII from your Company M/s Redecon India Pvt. Ltd. Abruptly?
Ans. Mr. Raghbir Singh got it vacated all of sudden few days before agreement to sell. Q.No. 38. Is it correct consequent upon vacation of property at S150, G.K. Part II, defendant has put you in possession of H54A, Kalkaji, in order to facilitate the working of M/s Redecon India Pvt. Ltd.?
Ans. It is correct.
Q. No. 39. Is it correct that vide Exh. D3 M/s Redecon India Pvt. Ltd. Occupied H54A, Kalkaji?
Ans. It is correct.
Q.No. 40. As per your books of accounts, how much rentals were being paid to Raghbir CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 23/47 Singh pursuant to Exh. D3/ agreed to be paid for occupying property No. H54A, Kalkaji, New Delhi.?
Ans. It was Rs. 25,000/ per month and two months advance was given. Vol. Which was later on adjusted as part of agreement to sell. Q. No. 41. I put it to you that there is no stipulation in the agreement to sell Exh. D4 that rentals or security amount given pursuant to Exh. D3 was to be treated as amount paid towards performance of Exh. D4, what do you have to say?
Ans. It is incorrect. Vol. When lease deed became null and void on next day and this amount automatically became part of agreement to sell. The witness has been shown Exh. D3 and D4 and was asked:
Q. No. 42. Please specify in which paragraph of Exh. D3 and D4 the amount of security was treated towards sale consideration and in which para of Exh. D3 and D4, lease deed was declared null and void by both the parties?
Ans. The witness is pointing out of Exh. D CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 24/47 4 of para 4 to his response to above question.
Q. No.52. Did you serve any notice upon the defendant to remain present in the office of sub registrar for execution of sale deed in your favour prior to filing of the suit?
Ans. No...."
20. Thereafter, defendant has also examined himself by way of affidavit and relied upon the documents PWRX1, PW1/D2 and Ex D2 and Ex D3. The witness has also been cross examined at length and the relevant extract of his cross examination is as under: "... I have received Rs. 10.00 lacs by way of cheque(s) in respect of the agreement to sell from Shri T.R. Bahu till date. I admit D4 in toto.
Q.No. 1. Is it correct that there is no mention in Exh. D4 that the property has been let out on lease to M/s Redicon India Pvt. Ltd. (objected to the document is admitted by the defendant in toto. The contents of the documents cannot be put to the witness).
Ans. It is correct.
I admit the lease deed Exh. D3 in toto and admit its contents in all respects. It is correct that the Exh. D3 is not a registered lease deed. I CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 25/47 admit my written statement and contents thereof in toto. I admit para 5 of the written statement. I cannot produce the bounced cheque no. 149342 dated 11.04.2005. I do not remember if the cheque no. 149342 dt. 11.04.2005 was a banker cheque and the same has been duly credited in my account. I can produce my statement of accounts pertaining to the receipt of payment from the plaintiff on the next date of hearing. I have not placed on record any receipt of lease money from M/s Redecon India Pvt. Ltd. Vol. The receipt of money if any has been paid, finds been mentioned in the lease deed itself. I have studied upto 12th standard. I admit contents of my entire affidavit, more specifically paras no. 5 to 7. It is correct that the contents of paras no. 5 to 7 of my affidavit in my written statement at all does not find mention. I cannot tell the exact date when as to when I disposed off the property bearing S150, Greater Kailash. Vol. After getting it vacated from M/s Redecon I had sold the property. I cannot tell the exact date on which M/s Redecon India Pvt. Ltd. Vacated the property bearing no. S150, Greater Kailash. I have not given any notice to M/s Redecon India Pvt. Ltd. in respect of agreement to sell CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 26/47 entered with Mr. T.R. Bahu. It is correct that I had filed a suit for possession against M/s Redecon India Pvt. Ltd. In terms of lease which was dismissed vide Exh. DW1/PX1. It is matter of record appeal against the judgment DW1/PX1 is pending before Delhi High Court.
I have not brought the statement of account with me for the 20052006 as it is more than 13 years and is not available with me.
Q. No. 2. I put it to you that the plaintiff had paid you a sum of Rs. 5,00,000/ by way of cheque no. 497686 dt. 03.10.02005 drawn on State Bank of Hyderabad?
Ans. I do not have the statement, so I cannot admit or deny the fact put to me in question no. 2 above. The witness has been confronted with his affidavit in para no. 12 by the plaintiff's counsel.
Q. No. 3. I put it to you that you have statd in para no. 12 of the evidence affidavit that you had received a sum of Rs. 5,00,000/ from Redecon India Pvt. Ltd, from where did you depose this fact in the absence of your bank statement?
Ans. My accountant has told me that we had received Rs. 5,00,000/ from Ms. Redecon.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 27/47Q. No. 4. Do you maintain statement of account in your office?
Ans. Yes. We used to maintain the accounts in our office, now they are not available being 13 years old.
Q. No. 5. Can you give breakup of Rs.
10,00,000/ received by you from plaintiff as stated by you on the last date of hearing?
Ans. That is 13 years old so I do not remember.
Q. No. 6. I put it to you that you were paid Rs. 5,00,000/ from the personal account of the plaintiff and not from Redicon India? (Objected to beyond pleading).
Ans. It is incorrect.
Q. No. 7. I put it to you that the plaintiff had paid you a sum of Rs. 4,00,000/ by way of Banker's cheque no. 452135 dt. 09.09.2005 drawn on Indian Overseas Bank, Branch Defence Colony, New Delhi?
Ans. I do not remember.
Q. No. 8. I put it to you that the plaintiff had paid you a sum of Rs. 75,000/ by way of Banker's cheque no. 523947 dt. 13.05.2005 drawn on Bank of CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 28/47 Rajasthan, Branch South Extn, New Delhi?
Ans. I do not remember.
Q. No. 9. I put it to you that plaintiff had paid you a sum of Rs. 1,00,000/ by way of banker's cheque n. 773114 dt. 12.05.2005 drawn on PNB, Branch Bengali Market, New Delhi?
Ans. I do not remember.
Q. No. 10. I put it to you that the plaintiff had paid you a sum of Rs. 4,25,000/ by way of Banker's cheque no. 587014 dt. 12.05.2005 drawn on IOB, Branch Defence Colony, New Delhi?
Ans. I do not remember.
Q. No. 11. I put it to you that the plaintiff had paid you a sum of Rs. 50,000/ by way of Banker's cheque no. 431649 dt. 23.04.2005 drawn on Bank of State Bank of Hyderabad, Branch Jamrudpur, New Delhi?
Ans. I do not remember.
Q. No. 12. I put it to you that the plaintiff had paid you a sum of Rs. 50,000/ by way of Banker's Cheque no 149342 dt. 11.04.2005 drawn on ICICI Bank, Branch, G.K.I, New Delhi?
Ans. I do not remember.
Q. No. 13. Do you have an account in CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 29/47 Centurian Bank, where you deposited all the cheques and Banker's cheques received from the plaintiff?
Ans. I do not remember as of now.
Q. No. 14. Did you write to your bank seeking a statement of account for the period of 20052006?
Ans. I had not any submitted any written application to the bank for issuance of bank statement. Vol. Orally I requested the bank to issue statement of account and my bank had shown its inability to issue statement of account.
Q. No. 15. I put it to you that the plaintiff had paid you a sum of Rs. 3,00,000/ by way of Banker's cheque no. 773045 dt. 02.05.2005 drawn on PNB, Branch Bengali Market, New Delhi?
Ans. I do not remember.
It is wrong to suggest that my affidavit is false and I am deliberately given evasive answers. It is incorrect that deliberately I have not filed my statement of account. It is incorrect I have received more than Rs. 20,00,000/ from the plaintiff pursuant to agreement to sell. It is incorrect that the plaintiff has tendered any amount to me towards the CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 30/47 fulfillment of contractual obligations. It is incorrect to suggest that my defence is false. It is incorrect to suggest that the plaintiff is entitled to specific performance of agreement to sell. It is incorrect to suggest that I am deposing falsely....."
21. In the written arguments, it has been submitted by Ld. Counsel for plaintiff that he entered into an agreement to sell dated 14.04.2005 with defendant in respect of the property bearing no. H54A, Kalkaji for total sale consideration of Rs. 24,50,000/, out of which he has paid Rs. 50,000/ as earnest money vide cheque no. 80396 dated 18.04.2005. It is submitted that, in total, plaintiff made payment of Rs. 19,51,000/ and thereafter, requested the defendant to get the documents prepared in the name of the plaintiff but defendant deliberately avoided the same. It is further submitted that though the parties entered into the lease agreement qua the suit property in question on 13.04.2005 but the same was declared as null and void after agreement to sell was entered into on 14.05.2005. It is submitted that plaintiff continued visiting the office of the defendant for completion of the formalities of the sale agreement but defendant has avoided the same. It is submitted that thereafter, with lot of efforts, plaintiff met the defendant in the month of September, 2006 and told him for registration of the documents but defendant failed to lend in CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 31/47 the office of the subRegistrar in respect of his own assurances. Thereafter, plaintiff wrote a letter dt. 06.10.2006 to the defendant asking him to hand over the papers after receiving the balance amount but the defendant failed to comply with the same. It is submitted that plaintiff has always been and even today prepared to perform his part of contract and is ready to make balance payment as per agreement. It is submitted that defendant has illegally rescinded the contract and has misappropriated the amount of Rs.19,51,000/ paid by the plaintiff towards the sale consideration of the suit property.
22. It is further submitted that defendant taking false and frivolous pleas, has issued legal notice upon the plaintiff asking him to vacate the property in question based upon the lease deed and the said notice was duly replied by the petitioner. It is further submitted that defendant has filed the suit for recovery of possession in December 2005 but the same was dismissed vide judgment dt. 01.05.2008.
23. It is submitted by Ld. Counsel for plaintiff that in view of the facts and circumstances of the judgment dt. 01.05.2008 in the Suit No. 130/2008 titled as Raghubir Singh vs. Redecon India Pvt. Ltd., passed by Ld. ADJ, it has been proved that the plaintiff has paid more than Rs. 21 lacs to the defendant against total sale consideration of Rs. 24,50,000/ as per agreement to sell and accordingly, he is entitled for a decree of specific performance and other consequent relief. It is submitted that the defendant utterly failed to prove nothing to the contrary and infact by giving evasive reply, he has helped the cause of CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 32/47 the plaintiff in that suit.
24. Written submissions has also been filed on behalf of defendant by submitting that the claim of the plaintiff in the present suit is based upon the agreement to sell dt. 14.04.2005 for which plaintiff is seeking specific performance of the contract which is the main controversy between the parties to the suit. It is the case of the defendant that plaintiff has taken the suit property on rent at rate of Rs. 25,000/ per month. It is submitted that defendant has filed the suit for possession which was dismissed by Ld. ADJ and the same is presently the subject matter of the regular first civil appeal before Hon'ble High Court of Delhi and order passed in CS No. 130/06 has not attained the finality.
25. It is submitted that the plaintiff has reproduced the issue earlier decided in the suit and in the present case he has deliberately seeking departure from the contractual obligation on the terms that the lease deed came to an end. It is submitted that sale consideration which was agreed at the time of the execution of agreement to sell dt. 14.04.2005 was Rs. 24,50,000/ and the payment which he has made is towards clearing the electricity dues for the premises in question. It is submitted that plaintiff has taken a stand that payment which were made earlier by him towards the discharge of his liability of electricity is to be treated as an amount received by defendant towards the sale consideration and consequent upon the signing of the agreement to sell, the lease deed was superseded. It is submitted by Ld. Counsel for defendant that in agreement to sell admittedly time was the essence of CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 33/47 the contract. It is submitted that agreement to sell is an admitted document and as per agreement to sell, all the balance payments were to be made as per clause (1) of the agreement to sell on or before 15.07.2005, failing which the agreement to sell shall be treated as null and void. It is submitted that plaintiff cannot seek departure from the agreement to sell in any manner. It is submitted that payments were made by the plaintiff within stipulated period as agreed between the parties and the plaintiff is not entitled for any equitable discretionary relief of the specific performance of the contract. Ld. Counsel for plaintiff has relied upon the judgment passed by Hon'ble High Court of Delhi in RFA No. 1056/2017 titled as Raj Rani vs. Praful Kumar and has dealt with the identical issue of specific performance of contract and has declined the specific performance of contract while relying upon Jinesh Kumar Jain vs. Iris Paintal reported as ILR (2012) Vol. V 678. Ld. Counsel for plaintiff has further relied upon judgment passed by Hon'ble Supreme Court titled as Nanjapan vs. Ramawami 2015 (3) AD SC 25 wherein it has laid down the following dictum: "...The court would take into consideration circumstances of each case, conduct of the parties, recitals in the sale agreement and the circumstances outside the contract have to be seen Considering the circumstances, such as CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 34/47 the construction of the residential house over the suit property, sale consideration, passage of time and hardship caused to the Appellant, makes it inequitable to exercise the discretionary relief of specific performance Advance paid by the respondents is to be refunded to the respondents with interest at the rate of 9% p.a. Appellant is directed to pay compensation of Rs. 2,00,000/ to the respondents.."
The Hon'ble Supreme Court in AIR 2011 SC 3234 has laid down that the time is the essence of the contract and no specific performance can be allowed by the Hon'ble Court.
26. It is further submitted that the payment of Rs.3 lacs made by the plaintiff was towards electricity dues which were payable by the plaintiff for use of the electricity for property No. S150, Greater KailashII and further submitted that this is an admitted position that plaintiff had not paid the said amount of Rs. 3 lacs towards the payment of sale consideration. It is further submitted that in the light of the judgment passed by Hon'ble Apex court in 2011 X AD Supreme Court Suraj Lamp vs. State of Haryana wherein the Apex court has held that in the absence of the registration, there is no right, CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 35/47 title or interest or protection of section 53A is available to the person claiming the protection.
27. It is further argued by Ld. Counsel for defendant that suit property is under valued as admittedly agreement to sell was for Rs. 24,50,000/ and it is dishonesty on the part of the plaintiff to allege that he had paid the total payment of Rs. 19,51,000/ to the defendant and valuation of the suit has been caused as Rs. 4,99,000/. Ld. Counsel for plaintiff has further submitted that there are certain admission in the plaint as well as during cross examination of the plaintiff to the effect that plaintiff has admitted the lease deed executed between the parties prior to agreement to sell. He has admitted that he has never surrendered the lease deed. He has admitted that agreement to sell is unregistered and therefore, protection of Section 53A is not available to the plaintiff.
28. It is further submitted that plaintiff has admitted that Rs. 3 lacs were paid towards the electricity charges which was the liability of the plaintiff company. Accordingly, this payment cannot be considered towards the sale consideration. It is submitted that plaintiff has admitted the liability of M/s Redecon India Pvt. Ltd. in respect of the property no. S150, G.KII in response to the question no. 22 in cross examination.
29. It is admitted by the plaintiff that he has not sought the cancellation of the lease deed as null and void before entering into the agreement to sell. It is further submitted that in the agreement to sell, CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 36/47 there is no stipulation that the possession was handed over by the defendant to the plaintiff pursuant to Ex D4. It is admitted by the plaintiff that possession of the suit property was handed over to him at rate of Rs. 25,000/ per month after vacating other premises of M/s Redecon Pvt. Ltd. It is submitted that plaintiff has not placed / proved his readiness and willingness that he possessed sufficient means to perform his part of the contractual obligations provided under Section 16 (c) of Specific Relief Act. It is further submitted that plaintiff has not produced its book of account, balance sheet to prove his credit worthiness in the present case. It is submitted that the onus to prove the issue no. 1 was upon the plaintiff but he has not discharged the onus. It is further submitted that since plaintiff has not produced the documents that he possessed sufficient funds to discharge his liability, thus, inference under Section 114 of Evidence Act is to be drawn against him.
30. Arguments heard. Record perused carefully and I have carefully gone through the evidence led by the parties in this case and the documents placed on record by the parties.
31. On the basis of the above discussions, my issuewise findings are as under: Issue No. 1 Whether the plaintiff is entitled to a decree of specific performance qua the agreement dated 14.04.2005 qua the suit CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 37/47 property bearing No. H54A, Ground Floor, Kalkaji, New Delhi, if so, its effect? OPP
32. Onus of proving this issue was upon the plaintiff. It was incumbent upon the plaintiff to prove before this court that agreement to sell has been legally and validly executed between the parties and further that he has acted as per agreement to sell.
33. First of all the question of admissibility of agreement to sell in evidence has been taken into consider. Plaintiff has come for the relief of agreement to sell and admittedly, he has not placed on record the said agreement. It is the defendant who has filed the documents i.e. agreement to sell dt. 14.04.2005 Ex DW1/A. Even if the agreement has been placed on record by the plaintiff, still it is admitted fact that the same is unregistered one and the plaintiff has sought a decree of specific performance of the agreement dt. 14.04.2005, in the light of the judgment passed by Hon'ble Apex court in Suraj Lamp Vs. State of Haryana wherein Hon'ble Apex court has held that in absence of the registration, there is no right, title or interest and protection of Section 53A available to the person claiming the protection.
Relevant extract of the judgment is reproduced as under: "...Scope of an agreement of sale.
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 38/47 charge on such property. This court in Narandas Karsondas Vs. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in; or charge on, the property. This is expressly declared in section 54 of the Transfer of Property Act. See Rambaran Prosad Vs. Ram Mohit Hazra [1967] SCR
293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act.
The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership...... that only on execution of conveyance ownership passes from one party to another..... In CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 39/47 Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra [2004 (8) SCC 614] this court held:
Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 40/47 (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immoveable property (except to the limited right granted under section 53 A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
34. As regards the payment part on behalf of the plaintiff is concerned, the facts are disputed among the parties. Payment of Rs. 3 lacs has been on account of electricity charges, the payment of Rs. 50000/ is on account of two months rent to the suit property @ Rs.25,000/ per month but I have gone through the cross examination of defendant wherein he has admitted that he has received the sum of Rs. 10 lacs from the plaintiff.
35. Let us now examine as to whether the plaintiff has led sufficient evidence and proved in this suit that the plaintiff has always been and continue to be ready and willing to perform its part of the contract.
36. The expression "has always been" and "continue to be ready"
and "willing to perform the contract" includes that the plaintiff must CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 41/47 show that he always has had the financial capacity to perform its part of the contract for making payment of balance sale consideration. However, financial capacity can be shown by seeing his balance sheet, assets etc. In the present case admittedly plaintiff has not placed on record any of his balance sheet proving the amount paid towards the sale consideration and also to show the financial capacity of his being ready and willing to perform the part.
37. As per Section 16 (c) of Specific Relief Act, it requires the plaintiff to show continue financial capacity to prove the balance sale consideration and in my opinion it has to be held that plaintiff has miserably failed. Merely by submitting that plaintiff is ready and willing to perform the part of the contract cannot be meant that he has financial capacity to perform the balance part of sale consideration which was supposed to be paid on the date as per agreement to sell. Plaintiff has failed on this account.
38. Readiness to perform the obligation by a proposed purchaser is very important aspect and it has to be proved by categorical evidence. Mere oral evidence and his averments cannot be substituted for categorical evidence on the specific statutory requirement of Section 16 (c) of Specific Relief Act. It is therefore, held that plaintiff has failed to show that it had always been ready and willing to perform of his part of agreement to sell by having necessary financial capacity to pay the balance sale consideration as nothing of sort has been placed on record by the plaintiff.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 42/4739. Another point of consideration is that when time is the essence of the contract and same is not fulfilled on that particular date where the agreement becomes null and void. Admittedly, parties entered into an agreement to sell on 14.04.2005 and stipulated date of payment made by the plaintiff to the defendant was 15.07.2005 and it is an admitted fact that plaintiff has not cleared the payment as per agreement to sell on or before this date. It has been averred in the plaint that plaintiff appeared in the office of Registrar on 14.09.2006 for registration of the sale deed but it has come on record during the cross examination of plaintiff that he has not even issued any notice upon the defendant to be present on 14.09.2006 in the office of Sub Registrar. Even it is not proved by the plaintiff that he himself visited the office of SubRegistrar as he has not placed on record any evidence to this effect.
40. It has been held in number of cases by Hon'ble Supreme Court as well as by our own Hon'ble High Court that time is essence of the contract, then payment is supposed to be done on or before that particular date, failing which renders the agreement as null and void.
41. The next aspect to be considered is to whether the plaintiff is entitled to the discretionary relief of specific performance. In law, merely because there is an agreement to sell, and that the proposed seller is found to be guilty of breach of agreement to sell, it does not automatically follow that a proposed buyer is entitled to specific performance of the agreement to sell.
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 43/4742. It has been held by Hon'ble High Court in RFA No. 1056/2017 in Raj Rani Vs. Praful Kumar and it is reproduced as under: "37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstances which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or nonperformance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and "non readiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 44/47 these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as th period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal in disposal of cases relating to specific performance, as suits and appeals, thereform routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees."
43. On the basis of above discussion, I am of this considered opinion that plaintiff is not entitled for any relief and issue no. 1 is accordingly decided against the plaintiff and in favour of the defendant.
Issue No. 2Whether the suit has not been properly valued for the purposes CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 45/47 of court fee and jurisdiction, if so, its effect? OPD
44. Onus to prove this issue is upon the defendant. Admittedly, the plaintiff has filed the present suit for specific performance of the agreement to sale dt. 14.04.2005. It is admitted fact that it is the plaintiff who has withdrawn his suit initially from the trial court by moving an application that since valuation of the suit is of Rs. 24,50,000/, he may be allowed to withdraw the present suit and to file it before Hon'ble High Court as at that point of time pecuniary jurisdiction of Ld. District Judge was only to Rs.20 Lacs, so it is admitted case of the plaintiff that valuation of the suit property is more than Rs. 20 lacs i.e. Rs. 24,50,000/
45. It is admitted fact that the plaintiff has only paid the court fees for amount of Rs.4,99,000/ and accordingly, there is no hesitation in recording the fact that the suit of the plaintiff is under valued.
RELIEF
46. In view of the decision of issue no. 1, plaintiff is not entitled for discretionary relief of specific performance and plaintiff is also not entitled for a decree of permanent injunction restraining the defendant from creating any third party interest in the suit property.
At this stage, I must note that in prayer clause (d), plaintiff has CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 46/47 prayed for passing any such further order or decree as may be deemed fit, proper, necessary and expedient. Although, plaintiff should have cautious enough to claim alternative relief of damages / compensation which a prospective purchaser is always entitled. Unfortunately, the subject suit is only a suit for specific performance in which there is no claim of alternative relief of compensation / damages. It has been noted that plaintiff has not only set out his case for claiming damages / compensation but he has also not lead any evidence whatsoever as to the difference in market price of the suit property.
This court came to the conclusion that though, plaintiff is not entitled to specific performance but he is entitled to compensation of money which he has paid to the defendant. Also no specific evidence has been led by the plaintiff that he has paid an amount of Rs.19,51,000/ but since the defendant has admitted the claim of the plaintiff to the tune of Rs.10 lacs towards the sale consideration, so in view of the above discussion, plaintiff, however, will be entitled for money decree for sum of Rs.10 lacs alongwith pendentelite and future interest @ 9% per annum till realization. Parties are left to bear their own costs.
47. Decree sheet be drawn accordingly and file be consigned to Records after due compliance.
Announced & dictated in (Neelam Singh)
the Open Court on 16.01.2021 ADJ02/SE/Saket Courts/Delhi
CS No. 10245/16 T.R. Bhau v. Raghubir Singh Page No. 47/47